By now, you’ve probably heard of the “Free Bieber” Campaign. Since it was announced, it has been widely reported on many blogs and news sites, including Hillicon Valley.

According to the campaign:

A new bill in Congress makes posting a video containing any copyrighted work a felony– with up to 5 years in prison.

But wait… didn’t Justin Bieber get famous by posting YouTube videos of himself singing copyrighted R&B songs? Yep.
If this bill passes, he could get 5 years in jail.

The rest of the website (store coming soon!) is filled with the usual diatribes against the mean record labels and movie studios.

But what makes this campaign truly absurd is that it is completely wrong about what this new bill will do. Not wrong in a “we’ll agree to disagree” sense, but wrong about the plain meaning of the text of the legislation.

The individuals behind the “Free Bieber” campaign are either completely ignorant about how copyright law works or being deliberately disingenuous to stir up opposition against a minor, albeit judicious, piece of legislation. Anyone who uploads video to YouTube faces no increased risk of criminal penalties if this bill passes.

Justin Bieber is not going to jail.

Uploading Video is Not a Public Performance

Copyright is made up of several, discrete rights: the right to reproduce, distribute, prepare derivative works, and publicly perform (or display) a work. 117 USC § 106. The Commercial Felony Streaming Act only concerns the public performance right. It aligns the maximum criminal penalties for infringement of public performances to the equivalent, already existing penalties for infringement of reproduction and distribution of copyrighted works.

It should first be pointed out that a “performance” requires two parts: an active and a passive component, the performer and the audience. “Broadcasters perform. Viewers do not perform.” 2Fortnightly Corp v. United Artists Television, 392 US 390, 398 (1968). Only a performer is liable for an unauthorized public performance; viewers and listeners are not infringers in this situation. 3Twentieth Century Music v. Aiken, 422 US 151, 159-60 (1975); Jerome H. Remick & Co. v. General Electric, 16 F.2d 829 (SDNY 1926): “Certainly those who listen do not perform, and therefore do not infringe.” So someone who merely watches or listens to unauthorized streaming media is not infringing on the copyright owner’s public performance right. 4Whether or not such activity infringes on the reproduction right is an entirely different question for another day.

The key to understanding public performance is pinning down what activity constitutes a performance and who is acting as the performer. (And don’t confuse the legal definition of a “performance” within copyright law with the every day meaning of the word.)

You may recall that earlier this month the Supreme Court denied cert in US v. ASCAP. That lawsuit provides a good starting point for learning how to answer these questions. ASCAP had argued that a download of a music file is not only a reproduction but also a public performance of the work. Both the District and Circuit Courts rejected this argument.

Said the 2nd Circuit:

The ordinary sense of the words “recite,” “render,” and “play” refer to actions that can be perceived contemporaneously. To “recite” is “to repeat from memory or read aloud esp[ecially] before an audience”, to “render” is to “say over: recite, repeat,” and to “play” is to “perform on a musical instrument,” “sound in performance,” “reproduce sound of recorded material” or to “act on a stage or in some other dramatic medium.” All three actions entail contemporaneous perceptibility.

These definitions comport with our common-sense understandings of these words. Itzakh Perlman gives a “recital” of Beethoven’s Violin Concerto in D Major when he performs it aloud before an audience. Jimmy Hendrix memorably (or not, depending on one’s sensibility) offered a “rendition” of the Star-Spangled Banner at Woodstock when he performed it aloud in 1969. Yo-Yo Ma “plays” the Cello Suite No. 1 when he draws the bow across his cello strings to audibly reproduce the notes that Bach inscribed. Music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener.

The final clause of the § 101 definition of “to perform” further confirms our interpretation. It states that a performance “in the case of a motion picture or other audiovisual work, [is] to show [the work’s] images in any sequence or to make the sounds accompanying it audible.” The fact that the statute defines performance in the audio-visual context as “show[ing]” the work or making it “audible” reinforces the conclusion that “to perform” a musical work entails contemporaneous perceptibility. ASCAP has provided no reason, and we can surmise none, why the statute would require a contemporaneously perceptible event in the context of an audio-visual work, but not in the context of a musical work.

The downloads at issue in this appeal are not musical performances that are contemporaneously perceived by the listener. They are simply transfers of electronic files containing digital copies from an on-line server to a local hard drive. The downloaded songs are not performed in any perceptible manner during the transfers; the user must take some further action to play the songs after they are downloaded. Because the electronic download itself involves no recitation, rendering, or playing of the musical work encoded in the digital transmission, we hold that such a download is not a performance of that work, as defined by § 101. [Emphasis added]. 5US v. ASCAP, 627 F.3d 64, 72-73 (2010).

Though it was specifically addressing downloading a file, the reasoning applies just as well to uploading a file. And, in fact, the District Court spoke more directly, saying “Although we acknowledge that the term ‘perform’ should be broadly construed, we can conceive of no construction that extends it to the copying of a digital file from one computer to another in the absence of any perceptible rendition.” 6US v. ASCAP, 485 F.Supp.2d 438, 443-44 (SDNY 2007). Other courts seem to agree: “Napster users who upload file names to the search index for others to copy violate plaintiffs’ distribution rights. Napster users who download files containing copyrighted music violate plaintiffs’ reproduction rights.” 7A&M Records v. Napster, 239 F.3d 1004, 1014 (9th Cir. 2001). “Downloading and uploading copyrighted files from a peer-to-peer network constitutes, respectively, reproducing and distributing copyrighted material in violation of 17 U.S.C. § 106.” 8Maverick Recording Co. v. Goldshteyn, No. CV-05-4523, 2005 WL 2892371, *3, 2006 U.S. Dist. LEXIS 52422, at *8 (E.D.N.Y. July 31, 2006).

Uploading a video to YouTube, then, may infringe on someone else’s reproduction or distribution rights, but it doesn’t infringe on someone else’s public performance rights.

We can compare users who upload to YouTube to record labels who provide songs to radio stations. Most commonly, record labels and recording artists control only the rights to the sound recording, while music publishers and songwriters control the rights to the underlying song. 9See Brian Day, In Defense of Copyright: Record Labels, Creativity, and the Future of Music, 21 Seton Hall Journal of Sports and Entertainment Law 61 (2011); Licensing Music: Cover songs, samples, public domain, CDBaby, July 23, 2010; Brooke Wentz, Understanding the Roles of Copyright Holders: Publishers and Labels, RightsWorkshop, July 29, 2010. A recording artist needs permission from a songwriter to reproduce a song onto a sound recording — generally called a “mechanical license.” A radio station needs permission to perform the song on air 10Though, at least in the US, it does not need permission to perform the sound recording on air since the Copyright Act only recognizes a limited digital public performance right for sound recordings, see 17 USC § 106(4), (6). — permission that is granted through blanket licensing by Performance Rights Organizations (in the US: ASCAP, BMI, and SESAC). The record label, however, doesn’t need a public performance license in this scenario because giving the sound recording to a radio station is not a performance.

In the same way, someone who uploads a video to YouTube is not performing the video — YouTube is.

Someone uploading a video to YouTube still needs permission for any reproduction or distribution of someone else’s copyrighted work that occurred during the creation and uploading of the video — but that’s always been true. The Commercial Felony Streaming Act adjusts the penalty only for unauthorized public performances.

In short, the proposed legislation changes no law that would effect someone uploading a video to YouTube.

It’s Still Copyright Infringement Without S.978

As an aside, I want to address the idea that creating and uploading videos to YouTube that use copyrighted material without permission is (and has always been) copyright infringement. Judging by some of the comments on sites reporting on the “Free Bieber” campaign, this idea is news to many people.

But despite the fact that creating and uploading a video using copyrighted material without permission is, in many cases, infringement, and despite much ink spilled worrying that such “user-generated content” could subject the user to copyright law’s various penalties, these worries have failed to materialize.

I’m not talking about a video being removed pursuant to a DMCA takedown notice — service providers take users’ videos down when they are notified by a content owner to protect themselves. A user may not like seeing his video come down, but a DMCA takedown is not legal action against the user and has no bearing on any liability for infringement the user may be exposed to.

I’m also not talking about lawsuits filed against individual P2P users for uploading and downloading music and movies through P2P networks. Filesharing is a markedly different activity than uploading content to a UGC sharing site like YouTube.

I’m talking specifically about legal action taken against users of YouTube and other sites who upload videos that may infringe on someone else’s copyright.

As far as we know, no typical YouTube user has ever been sued by a major entertainment industry company for uploading a video. We have heard of a couple special cases, involving pre-release content leaked by industry insiders, but those aren’t typical YouTube users. And there have probably been a few lawsuits brought by aggressive individual copyright trolls. But no lawsuits against YouTubers by Hollywood studios or major record labels. That’s right — millions of videos have been posted to YouTube, hundreds of thousands taken down by major media companies, but those companies have not brought lawsuits against YouTube users.

In his response to the “Free Bieber” campaign, Thomas Sydnor allays these worries even further. He notes that “Neither existing law nor S. 978 criminalizes the act of being a kid or consumer who does not understand the nuances of performance-right licensing”, “Even if posted years ago, Bieber’s videos were probably licensed,” and “Federal prosecutors have never, nor will they ever, prosecute ordinary consumers for technical infringements unworthy of even a takedown notice.”

We can disagree over legitimate concerns over any proposed legislation — its effectiveness, whether potential harms outweigh potential benefits. But these are not legitimate concerns. The worries expressed are not, in any sense, implicated by S.978.

Though, at least in the US, it does not need permission to perform the sound recording on air since the Copyright Act only recognizes a limited digital public performance right for sound recordings, see 17 USC § 106(4), (6).

13 Comments

Ha! That seems so obvious, I’m mad that I didn’t think of it. The Biebs isn’t the one publicly performing the work–YouTube is. Duh!

I don’t really follow the licensing issues at play, though. Would YouTube have licensing from the PROs that protects them for videos like The Biebs’s? Or would YouTube just be protected by the DMCA, without any need of licensing?

Anyone that thinks there isn’t a very real “pirate lobby”, need only look at this blatantly dishonest propaganda campaign. Sites like TD and TF are only the most public face of a very coordinated effort to maintain the status quo in regard to piracy.

Terry, Bieber’s videos are not analogous to the song files at issue in ASCAP and Napster. Watch his videos — they do not contain sound recordings except those he created and personally fixed to tangible form. The videos depict Bieber performing before a public audience musical works composed by others. Thus, the videos at the very least arguably provide evidence of infringing performances (assuming Bieber lacked proper licenses).

Moreover, if you admit that the streaming of Bieber’s YouTube videos by viewers violate the rightsholders’ performance rights, then isn’t Bieber the directly infringing party? While YouTube, like Napster, is providing the facilities that make possible the infringing performances, the acts of infringement occur at the direction of Bieber. He uploaded the videos with the knowledge and intent that they would be repeatedly performed. Thus YouTube is, at best, contributorily liable. If Napster users who uploaded sound recordings without authorization to Napster were directly infringing the distribution right each time Napster’s servers distributed the files, why isn’t Bieber infringing the performance right each time his performance is reproduced by YouTube?

Terry, Bieber’s videos are not analogous to the song files at issue in ASCAP and Napster. Watch his videos — they do not contain sound recordings except those he created and personally fixed to tangible form. The videos depict Bieber performing before a public audience musical works composed by others. Thus, the videos at the very least arguably provide evidence of infringing performances (assuming Bieber lacked proper licenses).

ASCAP concerned the copyright in the underlying musical composition, not the sound recording, which is exactly what is at issue here — the musical compositions that Bieber covers in his videos. If the performances that were filmed were infringing, the videos arguably provide evidence of that, but so what? (A) Even assuming the statute of limitations hasn’t already run on these performances, no one’s likely to sue — certainly criminal charges wouldn’t be brought, (B) It is generally the venue’s responsibility to obtain public performance licenses, not the performer. (C) S.978 only applies to public performances “by electronic means” so whatever theoretical liability there may be here would be unaffected by the bill.

Moreover, if you admit that the streaming of Bieber’s YouTube videos by viewers violate the rightsholders’ performance rights, then isn’t Bieber the directly infringing party? While YouTube, like Napster, is providing the facilities that make possible the infringing performances, the acts of infringement occur at the direction of Bieber. He uploaded the videos with the knowledge and intent that they would be repeatedly performed. Thus YouTube is, at best, contributorily liable. If Napster users who uploaded sound recordings without authorization to Napster were directly infringing the distribution right each time Napster’s servers distributed the files, why isn’t Bieber infringing the performance right each time his performance is reproduced by YouTube?

Or you can just say that if Bieber didn’t have permission to reproduce the underlying musical composition in a video then he infringed on the reproduction right when he created and uploaded the video. That’s been the law for over a century, and, at least since before YouTube existed, can in some situations be a felony. But Bieber hasn’t been sued and certainly hasn’t had criminal charges brought against him — just like millions of ordinary YouTube users.

That S.978 would change this is an absurd claim that the freebieber campaign folks haven’t (and likely can’t) explain.

Or you can just say that if Bieber didn’t have permission to reproduce the underlying musical composition in a video then he infringed on the reproduction right when he created and uploaded the video. That’s been the law for over a century, and, at least since before YouTube existed, can in some situations be a felony. But Bieber hasn’t been sued and certainly hasn’t had criminal charges brought against him — just like millions of ordinary YouTube users.

That S.978 would change this is an absurd claim that the freebieber campaign folks haven’t (and likely can’t) explain.

To be sure, I don’t think Bieber (or anyone else in a comparable position) is likely to be prosecuted if S.978 is enacted. I’m not even sure they could be prosecuted. But the law on this subject is not as clear as you’re portraying it to be.

His videos certainly infringed on the reproduction right, but how many times? At least once per video, of course, but assuming no users subsequently downloaded the videos, his infringements may not meet the value threshold for felony reproduction in 18 U.S.C.A. § 2319(b)(1).

The ASCAP court seemingly states that streaming a work constitutes a performance, whereas non-contemporaneous file transmission (e.g. downloading) constitutes a reproduction. ASCAP at 69 (emphasis added):

“RealNetworks performs music in audio and audio-visual contexts through a number of websites and subscription services. Like Yahoo!, these sites and services publicly perform musical works in numerous formats, including, inter alia, radio, television, movie, game, and music-video formats. Also like Yahoo!, only a portion of the content on RealNetworks’ sites and services consist of performances of musical works. In addition to performing music on websites and through services, the Internet Companies offer to users copies of recordings of musical works through download transmittals.”

Thus, if Bieber is violating the reproduction right each time he uploads a video, isn’t he also violating performance right each time a YouTube user streams an infringing video he uploaded?

It’s also debatable whether Bieber’s infringement was “willful” and “for purposes of commercial advantage or private financial gain.” The trial court opinion in United States v. Moran is not settled law — willfulness might simply mean intent to copy, rather than intent to unlawfully infringe. See Lydia Pallas Loren, Digitization, Commodification, Criminalization: The Evolution of Criminal Copyright Infringement and the Importance of the Willfulness Requirement, 77 WASH. U. L.Q. 835, 873 (1999). Moreover, “private financial gain” might simply mean the expectation of possibly receiving anything of value. See Howard B. Abrams, THE LAW OF COPYRIGHT § 18:8 (2010).

The language in the bill about public performance is not well defined by the courts or in practice, nor is it well-defined in the bill. This bill adds heavy criminal penalty to still-grey areas in copyright. It’s clear to copyright experts that there is grey area. There being grey area is the whole problem.

There are cases that say a transmission is a public performance — in these cases, Justin is similarly liable for public preformance because it is his uploading that is leading to public performances.

You state that uploading a video is not a public performance, however S506.A.1.b which is stating what constitutes criminal infringement states “by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.”

This is obviously a grey area, and I’m surprised you would completely dismiss their view, even calling them ignorant, when there are so many untested statutes in the digital copyright laws.

You state that uploading a video is not a public performance, however S506.A.1.b which is stating what constitutes criminal infringement states “by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.”

I don’t see how something that talks only about distribution (one of the exclusive rights of a copyright holder) has anything to do with public performance.

Even if what he did was prosecutable, the prohibition on ex post facto laws would keep him out of prison. Ex post facto laws are forbidden by the constitution, so Bieber and others that do it before the law takes effect have nothing to worry about.

One thing I’ve always been confused about is uploading videos you take of someone else performing copyrighted material. For example, I go to a lot of Laker games, and I took a video of a celebrity singing the national anthem. Is this a violation? I know the National Anthem isn’t technically copyrighted, but I think everything that happens inside Staples Center is…Do my own videos of professional sports or celebrity performances constitute a copyright violation? Anyone know about this kind of thing?

About

Copyhype provides news and info on current developments relating to copyright law, the media industries, and the digital economy. It cuts through the hype to bring reasoned discussion aimed at both legal and nonlegal audiences.

Terry Hart is currently VP Legal Policy and Copyright Counsel at the Copyright Alliance. Any opinions expressed on this site remain his own and not necessarily those of his present or any past employers.